Thông tư 16/2003/TT-BLĐTBXH hướng dẫn thực hiện chế độ thời giờ làm việc, thời giờ nghỉ ngơi đối với người lao động làm các công việc có tính thời vụ và gia công hàng xuất khẩu theo đơn đặt hàng do Bộ Lao động, Thương binh và Xã hội ban hành

CIRCULAR

GUIDING THE IMPLEMENTATION OF THE REGIME OF WORKING TIME AND REST TIME FOR LABORERS DOING SEASONAL JOBS OR PROCESSING EXPORT GOODS ON ORDERS

In furtherance of the Government's Decree No. 109/2002/ND-CP of December 27, 2002 amending and supplementing a number of articles of the Government's Decree No. 195/CP of December 31, 1994 detailing and guiding the implementation of a number of articles of the Labor Code on working time and rest time; after obtaining the opinions of the Ministry of Health, the Ministry of Finance, Vietnam Labor Confederation and the concerned agencies, the Ministry of Labor, War Invalids and Social Affairs hereby guides the implementation of the regime of working time and rest time for laborers doing seasonal jobs or processing export goods on orders as follows:

I. SCOPE AND SUBJECTS OF APPLICATION

1. The scope of application covers enterprises and production as well as business units (referred collectively to as enterprises):

- Enterprises established and operating under the State Enterprise Law, including enterprises engaged in production and business activities; enterprises engaged in public-utility activities; enterprises of the people's armed forces;

- Enterprises established and operating under the Enterprise Law, including limited liability companies, joint-stock companies, partnerships, private enterprises;

- Enterprises operating under the Law on Foreign Investment in Vietnam, including joint-venture enterprises and enterprises with 100% foreign-invested capital;

- Enterprises of political organizations or socio-political organizations;

- Cooperatives operating under the Cooperative Law and employing laborers under the labor contract regime;

- Individual production and business households, cooperation groups.

2. The subjects of application are laborers working under labor contracts with definite terms of between one and three years and with indefinite terms at the enterprises mentioned in Clause 1 above, including:

- Those doing seasonal jobs in agricultural, forestry and/or fishery production, requiring prompt harvesting or immediate post-harvest processing without delay;

- Those engaged in the processing of export goods on orders, which often depend on the time requested by goods owners.

II. WORKING TIME AND REST TIME

1. Working time of the above-mentioned subjects is prescribed below:

1.1. The annual standard working time funds:

TQ = [TN - (Tt + TP + TL)] x

+ TQ is the annual standard working time fund of laborers;

+ TN is the number of days in a year, which is 365 days for calendar years; or 366 days for leap years;

+ Tt is the total number of weekly rest days in a year, determined under the provisions in Article 72 of the Labor Code;

+ TP is the number of annual rest days, which is 12, 14 or 16 and increased according to working seniority under the provisions in Articles 74 and 75 of the Labor Code and Clause 2, Section II of Circular No. 07/LDTBXH-TT of April 11, 1995;

+ TL is the number of public holidays in a year, which is 8;

+ tn is the number of normal working hours in a day, which is 8; particularly for laborers doing extremely heavy, hazardous and dangerous occupations or jobs on the list promulgated by the Ministry of Labor, War Invalids and Social Affairs, this number is 6.

Worker A has been working for 15 years under normal working conditions at Company X. The 2003 standard working time fund of Worker A is calculated as follows:

- The number of annual rest days of Worker A is:

          15
12 + --------- = 15 days.
           5

+ The number of 12 days is determined under the provisions in Article 74 of the Labor Code;

+ 15/5 is the number of rest days increased according to working seniority as determined under the provisions in Article 75 of the Labor Code.

- To draw up the following calculation table:

As a result, the 2003 standard working time fund of Worker A is 2,320 hours.

Worker B has been doing an extremely heavy occupation for 15 years for Company Y. The 2003 standard working time fund of Worker B is calculated as follows:

- The number of annual rest days of Worker B is:

          15
16 + -------- = 19 days.
           5

+ The number of 16 days is determined under the provisions in Article 74 of the Labor Code;

+ 15/5 is the number of rest days increased according to working seniority as determined under the provisions in Article 75 of the Labor Code.

- To draw up the following calculation table:

As a result, the 2003 standard working time fund of Worker B is 1,716 hours.

1.2. The standard number of daily working hours:

Annually, basing

a/ Normal working days, each consisting of 8 hours, or 6 hours for laborers doing extremely heavy, hazardous or dangerous occupations or jobs;

b/ Working days, each consisting of between over 8 hours and 12 hours; or over 6 hours and 9 hours for laborers doing extremely heavy, hazardous or dangerous occupations or jobs;

c/ Working days, each consisting of between over 4 hours and under 8 hours; or over 3 hours and under 6 hours for laborers doing extremely heavy, hazardous or dangerous occupations or jobs;

Example 3: As in example 1, Worker A has the 2003 standard working time fund of 2,320 hours. Company X arranges the standard number of daily working hours of Worker A in 2003 as follows:

1.3. Principles for using the standard working time funds:

a/ In a year, the total standard number of working hours planned and determined under the guidance in Clause 1.2 above (including daily rest time counted as working time) must not exceed the annual standard working time fund (TQ) already determined in Clause 1.1 above;

b/ If the standard number of daily working hours is less than 8 hours, or less than 6 hours for laborers doing extremely heavy, hazardous or dangerous occupations or jobs has been planned and determined under the guidance at Points c and d, Clause 1.2 above, work stoppage wage must not be paid.

In February, Company X arranged Worker A to work 7 hours a day for 10 working days, then to rest for 11 whole working days. As the company made such arrangement according to the plan made as stated in Example 3 above, so:

- The number of working hours less than 8 hours of a normal working day is:

8 hours - 7 hours = 1 hour; for this one hour, the work stoppage wage must not be paid;

- For 11 rest days, work stoppage wage must not be paid.

c/ For the standard number of daily working hours already planned but not in fact arranged for laborers to work, the work stoppage wage must be paid.

In March, due to the production and business situation, Company X arranged Worker A to work 5 hours a day for 13 working days, then to rest for 10 whole working days. So, compared with the plan made above by Company A for Worker A in March:

- The number of actual working hours is less than the standard number of daily working hours is: 7 hours - 5 hours = 2 hours; for these two hours, the work stoppage wage must be paid;

- The number of work stoppage days as compared with the planned number is 10 days; for these 10 days, the work stoppage wage must be paid.

d/ If the standard number of daily working hours exceeds 8 hours or exceeds 6 hours for laborers doing heavy, hazardous or dangerous occupations or jobs, as determined at Point b of Clause 1.2. above, then such extra hours shall not be counted in the total annual number of overtime hours but wages must be paid therefor and other regimes related to overtime work must be implemented strictly according to the provisions in Circular No. 15/2003/TT-BLDTBXH of June 3, 2003 of the Ministry of Labor, War Invalids and Social Affairs guiding the performance of overtime work as stipulated in the Government's Decree No. 109/2002/ND-CP of December 27, 2002.

In April, Company X arranged Worker A to work 9 hours/day from Monday thru Saturday according to its plan stated in example 3 above. Thus, the number of hours in excess of the 8 normal working hours is 9 hours - 8 hours = 1 hour. This one hour shall not be counted in the total number of overtime hours in the year but wage must be paid therefor and other regimes related to overtime work in the year must be implemented strictly according to the provisions in Circular No. 15/2003/TT-BLDTBXH of June 3, 2003 of the Ministry of Labor, War Invalids and Social Affairs guiding the performance of overtime work as stipulated in the Government's Decree No. 109/2002/ND-CP of December 27, 2002.

e/ If the number of actual daily working hours exceeds the standard number of hours already planned under the guidance in Clause 1.2 above, the number of extra hours shall be counted as overtime for inclusion in the total number of overtime hours in the year and, accordingly, wage must be paid therefor and other regimes related to overtime work in the year must be implemented strictly according to the provisions in Circular No. 15/2003/TT-BLDTBXH of June 3, 2003 of the Ministry of Labor, War Invalids and Social Affairs guiding the performance of overtime work as stipulated in the Government's Decree No. 109/2002/ND-CP of December 27, 2002.

In July, Company X arranged Worker A to work 8 hours/day. Thus, compared with the plan made by the Company for Worker A in July as shown in example 3 above, the number of extra working hours as compared with the standard number of working hours 8 hours - 7 hours = 1 hour. This one hour shall be counted in the total number of overtime hours in the year and, accordingly, wage must be paid therefor and other regimes related to overtime work must be implemented strictly according to the provisions in Circular No. 15/2003/TT-BLDTBXH of June 3, 2003 of the Ministry of Labor, War Invalids and Social Affairs guiding the performance of overtime work as stipulated in the Government's Decree No. 109/2002/ND-CP of December 27, 2002.

f/ The total standard number of working hours and overtime hours in a day must not exceed 12 hours, or 9 hours for laborers doing extremely heavy, hazardous or dangerous occupations or jobs;

g/ The total standard number of working hours and overtime hours in a week must not exceed 64 hours, or 48 hours for laborers doing extremely heavy, hazardous or dangerous occupations or jobs;

Due to unexpected requirements, in May and June Company X needed overtime work. It would be permitted to make the following arrangement:

- In May, it would only be allowed to organize work according to the plan stated in example 3, must not organize overtime work because the total number of working hours in a week is: (11 hours/day x 4 days) + (10 hours/day x 2 days) = 64 hours;

- In June, it may arrange one overtime hour a day from Monday thru Friday.

2. Rest time of the above subjects is prescribed as follows:

2.1. Weekly, laborers shall have at least one rest day (24 consecutive hours). During seasonal months or when it is necessary to process urgently export goods on orders, if weekly rest days can not be arranged, it must be ensured that laborers have at least 4 rest days a month.

2.2. The regime of rest during or in the middle of a work shift and between two work shifts shall comply with the amended and supplemented Labor Code. Where laborers work over 10 hours a day, prior to the ninth working hour, they must be arranged at least 30 minutes' rest counted into the number of working hours.

2.3. Enterprises must make arrangements for laborers to rest on festive, New Year days or annual leaves as well as other paid rest days or have rest time as compensation therefor according to the provisions and the amended and supplemented Labor Code.

III. ORGANIZATION OF IMPLEMENTATION

1. Responsibilities of enterprises

- Annually, on the basis of their production and business plans, to take initiative in planning working time and rest time in the year. When planning, to refer to the opinions of the grassroots trade union executive committees or provisional trade union executive committees in the enterprises;

- To announce the working time and rest time plans to laborers within the enterprises before implementation. To negotiate with laborers before having them to work overtime as prescribed in Circular No. 15/2003/TT-BLDTBXH of June 3, 2003 of the Ministry of Labor, War Invalids and Social Affairs guiding the performance of overtime work as stipulated in the Government's Decree No. 109/2002/ND-CP of December 27, 2002.

- Annually, if the enterprises implement the regime of working time and rest time under the provisions of this Circular, they must make registration thereof with the provincial/municipal Services of Labor, War Invalids and Social Affairs according to a set form. If they determine the number of normal working hours per day as 8 or 6 for laborers performing extremely heavy, hazardous or dangerous occupations or jobs, they shall not have to make such registration.

2. Responsibilities of the provincial/municipal Services of Labor, War Invalids and Social Affairs:

- To coordinate with the provincial/municipal Labor Federations in disseminating this Circular to enterprises based in their localities; to regularly urge, examine and supervise the implementation thereof; and concurrently to intensify the implementation inspection and strictly handle any violations which are detected;

- To receive the written registrations of the working time and rest time plans under the guidance of this Circular. To create favorable conditions for enterprises to organize their production and business;

- To sum up and send biannual and annual reports to the Ministry of Labor, War Invalids and Social Affairs on the implementation of this Circular by the enterprises based in their localities.

3. This Circular takes effect 15 days after its publication in the Official Gazette.

To repeal Circular No. 14/1999/TT-BLDTBXH of May 18, 1999 of the Ministry of Labor, War Invalids and Social Affairs guiding the implementation of the regime of working time and rest time for laborers doing seasonal jobs or processing export goods on orders.

Any problems arising in the process of implementation should be reported to the Ministry of Labor, War Invalids and Social Affairs for settlement.

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